CONFIDENTIAL
is
070012
MDHOAN 8371
CONFIDENTIAL
FM FCO
HKC 241/4
O PER 1991
24114
RM2
TO IMMEDIATE HONG KONG
TELNO 361
OF 21103OZ FEBRUARY 91
INFO PRIORITY UKMIS NEW YORK, UKMIS GENEVA
TOP COPY 2/2 Q DIST?
YOUR TELNO 315: BILL OF RIGHTS/VBPS AND THIRD PERIOD REPORT ON THE ICCPR
WE LOOK FORWARD TO SEEING YOUR VIEWS ON THE QUESTION OF PROPOSED LEGISLATIVE AMENDMENTS TO THE IMMIGRATION ORDINANCE.
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2. QUITE SEPARATELY, HOWEVER, WE THINK WE NEED TO LOOK MORE CLOSELY AT CURRENT LEGISLATION AND PRACTICE, WITH THE IMMINENT HEARING ON THE THIRD PERIODIC REPORT IN MIND.
3. WE HAVE LOOKED FURTHER AT THE 1983 DECISION THAT YOUR LEGISLATION, ALTHOUGH IN BREACH OF HMG'S OBLIGATIONS UNDER THE ICCPR, COULD REMAIN IN FORCE. THE PRINCIPAL DIFFICULTIES IDENTIFIED WERE: (A) DEPRIVATION OF LIBERTY FOR INDEFINITE PERIODS: (B) ABSENCE OF ADEQUATE JUDICIAL PROCEDURES TO TEST THE GROUNDS OR MERITS OF DETENTION. OUR LEGAL ADVISERS AT THE TIME CONSIDERED YOUR LEGISLATION TO BE INCOMPATIBLE WITH ARTICLES 9(1) AND 9(4) OF THE ICCPR AND DOUBTED WHETHER THE UK'S RESERVATIONS WOULD BE ADEQUATE TO COVER THESE BREACHES. WE ASKED YOU (FCO TELNO 106 OF 2 FEBRUARY 1983) TO REVOKE THE LEGISLATION AS SOON AS THE SITUATION ALLOWED AND TO REVIEW THE POLICY REGULARLY.WE DO NOT THINK IT WOULD BE RIGHT TO DESCRIBE THE BREACHES AS TECHNICAL (PARAGRAPH 3 OF TUR).
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AT THE HEARING ON THE SECOND PERIODIC REPORT, MEMBERS OF THE COMMITTEE DID NOT FOCUS SPECIFICALLY ON LENGTH OF DETENTION OR AVAILABILITY OF JUDICIAL REVIEW BUT THEY DID ASK ABOUT GOVERNMENT POLICY ON THE RIGHT TO FREEDOM OF MOVEMENT OF REFUGEES, NON-REFUGEES AND PERSONS WHO HAD APPLIED FOR REFUGEE STATUS. WE CAN EXPECT THIS LINE OF QUESTIONING TO BE PURSUED ON THE THIRD PERIODIC REPORT, ESPECIALLY IN THE LIGHT OF THE CASE OF THE 111 VBPS AND THE RECENT APPLICATION FOR JUDICIAL REVIEW OF TRANSFERS BETWEEN CAMPS). (IN PARTICULAR, WE NOTE THAT AT THE HEARING ON THE SECOND PERIODIC REPORT, MR MARTIN CHONG KONG) EXPLAINED THAT THERE WERE PLANS TO LIBERALISE THE CLOSED CENTRES OVER A PERIOD OF TIME, SINCE THE DETERRENT REASON FOR WHICH THEY
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